Florida Intellectual Property Law Blog

As a Florida patent attorney and the author of the Florida Intellectual Property Law Blog, I often receive press releases and news submissions relating to Florida intellectual property matters.  I received the following press release today regarding another case by Florida intellectual property attorneys Silverman Santucci, LLP concerning alleged violations of Florida trade secret law:

For immediate release by PRceptions:

Tim Allen and Touchtone Pictures Sued Over Wild Hogs Rip-Off

One week before the national release of the much publicized John Travolta road comedy, Wild Hog's, Travolta's co-star, and Hollywood funny man, Tim Allen, and Disney's Touchtone Pictures, are being sued for theft of trade secrets under Florida law. The suit is still pending.

 If South Florida screen writers Steven Battaglia and Paul Danner get their way, and the Florida courts aprove, all money generated by the movie will be deposited in a trust fund pending the outcome of the lawsuit.

 The lawsuit claims that on two occasions, first in 2000 on the set of the Touchstone movie The Crew, and then again in 2002 on the set of another Touchstone release Big Trouble starring Tim Allen, Battaglia handed copies of his work to agents and representatives of Touchtone Pictures and to one of Tim Allen's personal assistants. Writer Steven Battaglia is a well known South Florida based hair dresser who works on movie sets in the area. Paul Danner is a author/screen writer with extensive credentials as well as being a police detective in South Florida.

A U.S. District Court Judge's ruling against restaurant chain, HOOTERS, has been affirmed in a decision by the U.S. Court of Appeals for the Eleventh Circuit.

Florida District Court Judge Anne C. Conway in Orlando, Florida, ruled that the "Hooters Girl" persona is "primarily functional" and therefore not entitled to trademark protection. HI Ltd. Partnership v. Winghouse of Florida, Inc. No. 6:03-cv-116 (M.D. Fla. 2004).

Trademark attorneys for Hooters claimed that the Florida based sports bar WingHouse copied too many elements from Hooters restaurant and violated the Florida Deceptive and Unfair Trade Practices Act.

Relying on the classic elements of trademark infringement, Hooter's argued that Winghouse copied so many features unique to Hooters that customers would be confused into thinking the two companies were affiliated.

Todd Mayover, in-house intellectual property counsel for a medical device company in Florida, has an interesting post at the IPCounsel Blog entitled Intellectual Property Mediation:

"Regardless of the situation, without suggesting mediation, it will never happen. The obvious risk is that other party(s) may say no, but this would have no effect on the actual case at hand. At least the parties would know where they stand."

That being said, it is important to note that the risks of not mediating vary greatly depending upon which milestones have already passed in the litigation.

In Breckenridge Pharmaceutical, Inc. v. Metabolite Laboratories, Inc. et al. (Fed. Cir. 2006), the Federal Circuit held that a patent owner's dealings with a Florida licensee was sufficient to give the court jurisdiction over the patent owner.

Beckenridge filed suit against Metabolite and PamLab in the United Stated District Court for the Southern District of Florida for a declaratory judgment of non-infringement of the patent and alleging state law claims of tortious interference with contract and unfair competition.

The Federal Circuit held that Florida's long-arm statute authorized personal jurisdiction over Metabolite and that such jurisdiction would comport with due process:

In sum, our case law has held as follows: where a defendant has sent cease and desist letters into a forum state that primarily involve a legal dispute unrelated to the patent at issue, such as an injunction obtained for misappropriation of trade secrets, the exercise of personal jurisdiction is improper. Silent Drive, 326 F.3d at 1202.

As any successful entrepreneur will tell you, there are a multitude of competitive risks faced by companies that, although unfair, are perfectly legal. As such, the term "unfair competition law" is actually an illusory term and one of the most difficult areas of intellectual property to define.